ON PETITION FOR REHEARING. In a petition for rehearing appellee questions only the validity of our holding that there was no evidence upon which instructions as to defective brakes might be based. The principal argument is that appellant Kahler testified that he was driving at the rate of 40 to 50 miles per hour and that he applied the brakes when distant 80 to 90 feet from the Hoesel car. Appellee then cites Paragraph 7 (b) of § 47-2228, Burns' 1940 Replacement, which provides that a motor vehicle equipped with four-wheel brakes traveling at 20 miles per hour must be capable of being stopped within 30 feet, or, as appellee says, "at a distance of one and one-half times its speed." Erroneously appellee then reasons that "a car going 50 miles per hour should have been equipped with brakes capable of stopping it within 75 feet . . .," (less than the distance between the two cars) and concludes that the brakes were inadequate. This fallacious argument was evidently feared by appellant Kahler when he was objecting to appellee's tendered instruction 10, which reads:
"I further instruct you that on July 20, 1941, Section 47-2228, B.R.S. 1940 Replacement in part in substance provided that every motor vehicle should be capable at all times and under all conditions of loading, of being stopped on a dry, smooth, level road and free from loose material upon the application of the service (foot) brake when traveling twenty (20) miles per hour within a distance *Page 350 of thirty (30) feet if such motor vehicle had brakes on all wheels.
"You may take the provisions herein set forth of such statute into consideration in determining the question of negligence if any, on the part of the defendant, Kahler."
The objection made in compliance with Rule 1-7 is in part as follows:
". . . that the instruction is misleading, in that it informs the Jury as to the distances in which a car must be able to stop; going twenty miles an hour; whereas, there is no evidence before the Jury that the Kahler car was at the time or any time in close proximity to the accident, traveling at twenty miles an hour; that it is further misleading in that it would let the jury believe, in fact would lead them to believe that a car travelling at twice the rate of speed, could stop in twice the distance, which would not be a correct inference or assumption for the Jury to draw.
"For the further reason that the statement is not complete and the part of the statute quoted is not complete, is only a part of it and is the part not applicable to the evidence in this case.
"For the further reason there has been no proof of defective brakes.
"And that in addition, any instruction concerning brakes or defective brakes would not in any way be applicable to the evidence in the case."
In writing the original opinion we thought it sufficient to say that this and another instruction were erroneously given because inapplicable to any evidence. But in view of appellee's present argument, which may have been made to the jury or may be made to another jury, we have given the whole subject further consideration. *Page 351
A traffic engineer has said that "braking distance varies as the square of the speed; that is, if the speed is doubled, the stopping distance is quadrupled, and if the speed is trebled the stopping distance becomes nine times as great." J.S. Baker, author of Public Safety Memo. No. 22 of National Safety Council, Published July 1937 (Revised), Reprinted April, 1940. He says also that "the best present legislation regarding brakes is represented by Section 124 of `The Uniform Act Regulating Traffic on Highways' (Act V) of the Fourth National Conference on Street and Highway Safety (1934) published by the Bureau of Public Roads, United States Department of Agriculture." This is the form of uniform act upon which ch. 48, Acts 1939, § 47-1801 et seq., Burns' 1940 Replacement, § 11189-11 et seq., Baldwin's Supp. 1939, is based. Paragraph 7 (b) of § 47-2228, Burns' 1940 Replacement, supra, referred to in the above instruction is substantially the same as § 124(b) of the original uniform act quoted by Mr. Baker. He continues with the statement that "this model law requires 44.6% braking effort for" vehicles equipped with four-wheel brakes.
At page 95 in "Accident Investigation Manual" published in 1940 by the Northwestern University Traffic Institute is a table showing "Braking Distance." The first and last columns are in part as follows:
"Speed of car 44.3% braking
"10 m.p.h. 7.5 feet "20 " 30.0 " "30 " 67.7 " "40 " 120.0 " "50 " 187.5 " "
On this subject see also "Public Safety," Kreml-Stiver-Rice (Published 1937, The Bobbs-Merrill Co.) *Page 352
We would not be understood as having taken judicial notice of the accuracy of any of the calculations on which the above mentioned stopping distances are based. In any case 22. involving such questions the subject would seem to call for expert testimony for there are numerous variables which may affect the result in any particular case. Some of these are considered in detail in Mr. Baker's article. But we do point to this information as showing the fallacy of appellee's argument. If with the same braking and road conditions that permit a car traveling 20 miles per hour to be stopped in 30 feet it takes 187.5 feet to stop a car traveling 50 miles per hour, it can hardly be contended that failure to avoid hitting a car 90 feet away, even though the car hit be still skidding forward, was evidence of inadequacy of brakes.
Moreover, upon reexamination of the reasons assigned for the alleged error in giving the instruction we are impressed with the merit of Kahler's objections above quoted to the effect 23. that not only was it inapplicable to the evidence but it was also prejudicially misleading. It seems to us that such an instruction should not be given even in a case where there is evidence of defective brakes and certainly not unless the braking distances, speed and other variables be shown by the evidence and appropriately treated in the instruction.
Appellee cites ten cases supposed to sustain the proposition "that the mere fact that the car driven by Kahler struck the car driven by Hoesel in the rear legitimately gives rise to an inference that Kahler's brakes were not in proper working order." We find nothing in any of these cases so holding. None of them involves the question before us as to whether an instruction *Page 353 as to defective brakes might be given based only upon an inference arising from the fact of a collision.
After examining carefully all of appellee's contentions on petition for rehearing we find no reason for receding from our original position but on the contrary additional reason for holding that it was error to give instruction number 10 requested by appellee.
Petition denied.
NOTE. — Reported in 53 N.E.2d 769.